Section 11 Nursing Breaks

INTRODUCTION

The Maternity Benefit Amendment Act, is a landmark law which has enhanced the
maternity benefits already available under the parent Maternity Benefit Act, 1961.
The Act has increased the duration of paid maternity leave available to working
mothers from 12 weeks to 26 weeks. However, for women, who already have two
surviving children will be only entitled to a paid maternity leave of 12 weeks. Further,
the Maternity Act has introduced provisions for adopting mother and commissioning
mothers2 who are entitled to maternity benefit leave of 12 weeks from the date on
which the child is being handed over to the mother.

The Maternity Benefit Act had come into force on April 1, 2017. As certain queries
were raised before about the applicability of the Act to contractual women employees,
applicability on mothers who have already availed maternity leave and dismissal of
women employees due to pregnancy, the Ministry of Labour and Employment
clarified such queries, the details of which have been discussed below.

In the principal Act, after section 11, the following section shall be inserted, namely:
‘‘11A. (1) Every establishment having fifty or more employees shall have the facility
of creche within such distance as may be prescribed, either separately or along with
common facilities: Provided that the employer shall allow four visits a day to the
creche by the woman, which shall also include the interval for rest allowed to her. (2)
Every establishment shall intimate in writing and electronically to every woman at the
time of her initial appointment regarding every benefit available under the Act.’’

Provision of Creche under the Act

An important provision, Section 11A, introduced by the Maternity Act is that any
establishment which has 50 or more employees shall have the facility of creche. This
provision has sparked a lot of debates and discussions among employers on whether
the provision is to be interpreted to be applicable on establishments with 50 or more
female employees or on establishments with 50 or more employees.

It is pertinent to note that since this section specifically mentions the term
'employees', therefore, the obligation to have a creche applies to all establishments
with 50 or more employees, inclusive of males and females. The term 'employees'
has been used to make the provision gender neutral, because though a woman is
biologically endowed to give birth, however, the responsibility to take care of a child
lies with both the father and the mother. Therefore, even if an establishment consists
of only males, such establishment should have a creche facility so as to enable
fathers to bring their children to the creche.

Further, Section 11A of the Maternity Act safeguards the intent of Section 48 of the
Factories Act, 1948, which requires factories with more than 30 female workers to
have a creche. Therefore, even if a factory has less than 50 employees but has at
least 30 females, such factory will be under the obligation to have a creche under the
Factories Act, 1948. Further, if Section 11A of the Maternity Act had been framed to
be applicable on establishments with 50 or more female employees, then, Section 48
of the Factories Act, 1948, would have lost its effect as factories having more than 30
women workers but less than 50 women workers would have done away with the
compliance of having a creche.

Manner of having creche under the Maternity Act

The Maternity Act has not prescribed any details or manner of instituting or
maintaining a creche in an establishment. Therefore, the Social Security Division,
Ministry of Labour and Employment, has issued a circular3 dated November 17,
2018, wherein State governments have been requested to frame and notify Rules
prescribing amenities and facilities required to be provided in a creche.

As the Guidelines on creche facilities are awaited from the respective State
Governments, therefore, establishments may, in the meantime, adopt as guidelines,
the provisions relating to creche from various existing laws. For example, both the
Factories Act, 1948,4 and The Building and other Construction Workers' (Regulation
of Employment and Conditions of Service) Act, 1996,5 provide that creches shall-

i. provide adequate accommodation

ii. be adequately lighted and ventilated
iii. be maintained in a clean and sanitary condition;
iv. be under the charge of women trained in the care of children and infants.

Further, it is to be noted that creche facilities should be available to employees free

of cost.

Subsequent to the introduction of the Amendment Act and clarifications on specific

aspects that the Ministry of Labour and Employment on April 12th 2017, several
questions have been raised by companies with respect to their obligations as
employers under certain aspects of the Amendment Act.

 Will adopting and commission mothers be entitled to nursing breaks (or other
equivalent breaks), or are these only available to biological mothers?

Since section 11 of the Maternity Benefit Act has not been amended by the
Amendment Act, adopting and commissioning mothers will not be entitled to
nursing breaks. The only women covered by Section 11 of the Act are those
who have ‘delivered a child’.

However, four visits to the crèche would be available to adopting and

commissioning mothers.

 Whether the creche facilities can also be provided to male employees?

The amendment act is silent in this regard. Since the act is a welfare
legislation and applicable to women employees, the primary responsibility of
an employer is to provide crèche facilities to children of ‘women’. However,
an employer, at his discretion, could extend the creche facilities to male
employees.
 A woman is entitled to four visits in a day to the creche facility. Is this only
applicable to nursing mothers? What about adopting and commissioning
mothers? Additionally, what should be the minimum time allowed to working
women for such visits?

No, the requirement is not only for nursing mothers but also extends to
adopting and commissioning mothers in view of the use of the word “woman”
and not “woman delivered of child” in the proviso to sub-section(1) of section
11A.

The minimum time period for such a visit is subject to rules that may be
issued by the appropriate government at a larger stage. It is important role that
these four visits are inclusive of an interval for rest. The position, as of today,
with respect to rest periods, is governed by Factories Act, 1948 and state
specific Shops and Establishments Act. For instance, the minimum rest bresk
(after every five hours of work), as provided for under different statutes, is as
follows:

1. Factories Act, 1948: half an hour

2. Delhi Shops and Establishments Act, 1954: half an hour
3. Bombay Shops and Establishments Act, 1948: one hour (half an hour in
the case of employees in a commercial establishment engaged in any
manufacturing process)